Citation Nr: 21013595 Decision Date: 03/09/21 Archive Date: 03/09/21 DOCKET NO. 18-49 893A DATE: March 9, 2021 REMANDED Entitlement to service connection for sleep apnea, to include on a secondary basis, is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from August 1988 to August 1992, to include service in the Southwest Asia. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Board denied this claim in July 2019, and the Veteran appealed to the United States Court of Appeals for Veterans Claims (Court). In August 2020, the Court granted a Joint Motion for Partial Remand (JMPR) in which the parties agreed to vacate the July 2019 decision and remand the matter to the Board. While the Board regrets further delay, the issue must be remanded to the Agency of Original Jurisdiction (AOJ) for additional development consistent with the JMPR. In the JMPR, the Court found that VA failed to satisfy the duty to assist as the record did not contain an adequate medical opinion addressing the theory of secondary service connection and that, in addition, the Board did not adequately address a reasonably raised theory of service connection, specifically whether the Veteran’s service-connected depression caused obesity, which in turn, caused sleep apnea. On remand, the AOJ should schedule the Veteran for an examination to obtain an opinion that adequately addresses whether the Veteran’s sleep apnea is at least as likely as not caused or aggravated by his service-connected major depressive disorder. The Board will also ask on remand for the examiner to provide an opinion as to whether sleep apnea is secondary to service-connected chronic fatigue syndrome. See April 2016 DRO Hearing Testimony. Per the JMPR, the opinion obtained should also address whether any exposure to Persian Gulf toxins, to include burn pits, aggravated the Veteran’s sleep apnea. See also June 2014 Statement in Support of Claim. As to whether the Veteran’s service-connected major depressive disorder caused his obesity, which in turn, caused sleep apnea, the VA General Counsel states in an opinion that obesity is not a disease for service connection purposes. VAOPGCPREC 1-2017 (Jan 6, 2017). Nonetheless, obesity may be an intermittent step between a service-connected disability and a current disability that may be service connected on a secondary basis. In Walsh v. Wilkie, 32 Vet. App. 300 (2020), the Court held that VAOPGCPREC 1-2017 not only applies when a service-connected disability causes obesity, but also when a service-connected disability aggravates obesity. If either is the case, the next question is whether the obesity as a result of the service-connected disability was a substantial factor in causing the current disability for which a veteran is seeking service connection; and then whether the current disability for which a veteran is seeking service connection would not have occurred but for the obesity caused by the service-connected disability. Here, an additional medical opinion is necessary to address this theory of entitlement. The matters are REMANDED for the following action: 1. Ask the Veteran to identify all outstanding treatment records relevant to his sleep apnea claim. All identified VA records should be added to the claims file. All other properly identified records should be obtained if the necessary authorization to obtain the records is provided by the Veteran. If any records are not available, or the Veteran identifies sources of treatment but does not provide authorization to obtain records, appropriate action should be taken (see 38 C.F.R. § 3.159(c)-(e)), to include notifying the Veteran of the unavailability of the records. 2. After records development is completed, schedule the Veteran for a VA examination to determine whether it is at least as likely as not (50 percent probability or greater) the current sleep apnea onset during service or is otherwise related to an in-service injury, event, or disease, to include exposure to burn pits and Persian Gulf toxins. The examiner should also address whether the current sleep apnea is at least as likely as not (a) caused by, or (b) aggravated by (worsened beyond natural progression) service-connected major depression disorder and/or chronic fatigue syndrome. The examiner should also offer an opinion as to whether it is at least as likely as not that: (a) The Veteran’s major depressive disorder and/or chronic fatigue syndrome caused him to become obese. (b) If the answer to (a) is “no,” does/did the Veteran’s major depressive disorder and/or chronic fatigue syndrome aggravate his obesity? (c) If the Veteran is obese and the answer to either (a) or (b) is “yes”, was the obesity a substantial factor in causing his sleep apnea? (d) Would the sleep apnea not have occurred but for the obesity caused (or aggravated) by major depressive disorder and/or chronic fatigue syndrome? The examiner should elicit a full history from the Veteran and consider the lay statements of record. The Veteran is competent to attest to factual matters of which he has first-hand knowledge, and if there is a medical basis to support or doubt the history provided by the Veteran the examiner should provide a fully reasoned explanation. A rationale for all opinions expressed is requested as adjudicators are precluded from making any medical findings. C.B. Iwanowski Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Mathew The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.